Chapter 8
Judges
LEARNING OBJECTIVES
After reading this chapter, students should be able to:
1. Discuss the role of the judge within the courtroom work group.
2. Name the three major ways that judges are selected in the United States.
4. Recognize major changes in the composition of the bench over the past several
decades.
6. Explain the difference between the impeachment and the removal of a federal
judge.
LESSON PLAN
Correlated to PowerPoints
I. The Position of Judge
Learning Objective 1: Discuss the role of the judge within the courtroom work
group.
A. Powers of the Judge
i. The formal powers of judges extend throughout the criminal court
process. From arrest to final disposition, the accused face judges
whenever decisions affecting their futures are made.
ii. Judges set bail and revoke it; they determine whether sufficient probable
cause exists to hold defendants; they rule on pretrial motions to exclude
and after conviction, they set punishment.
iii. In the course of their workday, they conduct hearings, accept guilty pleas,
impose sentences, or work in chambers.
iv. In carrying out the responsibilities of the office, judges mainly react to
the work of prosecutors and defense attorneys.
B. Benefits of the Job
i. Judges have been given a high level of prestige and respect.
ii. Federal judges enjoy life terms, as do judges in a handful of states. Terms
of office for state judges range from 6 to 10 years, a reflection of the
independence of the American judiciary.
iii. For many lawyers, a judgeship is the capstone to a successful career.
iv. Judicial salaries are not the highest incomes in the legal profession, but
they are higher than the average of other criminal justice personnel.
v. For the majority of lawyers, however, a judgeship represents a significant
decrease in earning power (Jensen, 2011).
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vi. Many judgeships carry with them considerable patronage powers.
C. Frustrations of the Job
i. One of the most frustrating aspects of being a judge is the heavy caseload
and corresponding administrative problems (Rosen, 1987).
ii. Moreover, the judge’s actions are limited by the system—lawyers are
late, court documents get lost, jails are crowded.
Class Discussion/Activity 1
How has the composition of the bench changed over the past several decades?
Should efforts be made to speed the process of change? If so, how?
instead of the Congress, are more appropriately qualified to interpret the meaning of
the U.S. Constitution as intended by the drafters.
Media Tool
Watch PBS video The Open Mind—The Constitution is What the Judges Say It Is,
Parts I & II:
II. Judges Within the Courtroom Work Group
Learning Objective 2: Name the three major ways that judges are selected in the
United States.
A. Judges are constrained by the actions of other members of the courtroom
work group—prosecutors, defense attorneys, and probation officers.
B. Sanctions can be applied against judges who deviate from the consensus of
the courtroom work group, but by no means are judges totally controlled by
the courtroom work group.
C. As the most prestigious members of the group, judges can bring numerous
E. In large courts, “judge shopping” is a common practice.
F. Although organizational pressures work to provide a certain degree of
G. Varying Roads to a Judgeship
i. Which lawyers are selected to be judges is determined by both formal
selection methods and informal procedures.
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ii. The major formal selection methods used in states include partisan
selection methods are needed.
H. Executive Appointments
i. Historically, judges were selected by executive appointment or elected by
I. Election of Judges
i. None of the original 13 states elected its judges, but the majority of states
today use some sort of election mechanism to select at least some of their
J. Merit Selection
i. In response to concerns about electing judges, legal reformers advocate
merit selection, also known as the Missouri Bar Plan after the first state
to adopt it in 1940.
Class Discussion/Activity 2
Which form of judicial selection do you think is best? What are the differences?
See Assignments 1 and 2
III. Consequences of Judicial Selection
Learning Objective 3: Analyze the consequences of different methods of judicial
selection.
Learning Objective 4: Recognize major changes in the composition of the bench
over the past several decades.
A. Which System Is Best?
i. In evaluating which selection system is best, a key criterion is whether
one system produces better judges than another. Researchers use
ii. When legislators appoint judges, former legislators are more likely to be
selected.
iii. When the governor appoints, the system benefits those who have held
state office.
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iv. Elective systems elevate to the bench a higher proportion of persons who
have held local political office.
v. Under the Missouri Bar Plan and elective systems, former district
attorneys are more often selected as judges.
vi. From a broader perspective, methods of judicial selection have only a
marginal influence on the types of lawyers who become judges. Whether
elected by the voters, appointed by the governor, or selected through
merit plans, state judges are more alike than different.
vii. In terms of personal background characteristics, the systems of judicial
selection do not seem to make much difference.
viii. Does one method of judicial selection produce higher-quality judges than
another? Scholars are divided on this question. It is important to note the
evidence that judges selected in partisan elections react to public opinion,
B. Similarities in Judges’ Backgrounds
i. Judges share some important similarities.
ii. In general, judges are men from the upper middle class, they are more
often white and Protestant, and they are better educated than the average
American.
iii. Another similarity among judges is that most were born in the community
in which they serve.
iv. Finally, judges are seldom newcomers to political life.
C. Diversity and the Judiciary
i. The profile of judges as white males has begun to change. Federal
appointments have begun to include more women and minorities. The
picture with regard to state judges is significantly more complicated.
ii. Until the 20th century, the number of female judges in America was so
small that they could be counted on the fingers of one hand. The 20th
century began witnessing gradual changes.
iii. As the number of women serving on the state and federal benches has
risen, there has been an understandable interest in probing the
Media Tool
Watch PBS video The Journal: Justice for Sale:
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campaigns are financed by special interest groups such as trial lawyers and big
corporations whose cases are handled by the same judges.
Write a paper about the ten best practices recommended by the authors and identify
the one that you think would have the most impact.
Media Tool
Read the article titled Improving Judicial Diversity:
IV. Judging the Judges
Learning Objective 5: Describe the activities of state judicial conduct
commissions.
Learning Objective 6: Explain the difference between the impeachment and the
removal of a federal judge.
A. What should be done about unfit judges? Although there is a lack of clarity in
what attributes a good judge should possess, it is apparent that a few judges
do not fulfill minimal standards.
B. Judicial Independence
i. A system for removing unfit judges, while at the same time guaranteeing
judicial independence, is a critical issue. Systems for removing or
C. Judicial Performance
i. Judicial performance evaluations (JPEs) can assist judges in improving
their own performance and provide the public within information about
the judge.
D. Judicial Misconduct
i. One of the most difficult situations involves judges of advanced years
whose mental capacity has become impaired. A growing number of states
impose mandatory retirement ages for judges.
ii. Formal methods for removing unfit judges—recall elections and
E. State Judicial Conduct Commissions
i. A more workable method for dealing with judicial misconduct is the
judicial conduct commission. The commission, made up of judges,
lawyers, and prominent laypersons, investigates allegations of judicial
misconduct and, when appropriate, hears testimony.
ii. If the commission finds in favor of the judge, the investigation is closed,
and the matter is permanently concluded (Miller, 1991).
iii. If the complaint has merit, the commission may recommend a sanction of
private admonishment, public censure, retirement, or removal. The state
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supreme court retains the final power to discipline errant judges
(Gardiner, 1986).
F. Federal Conduct and Disability Act
i. In 1980, Congress passed the Judicial Councils Reform and Judicial
Conduct and Disability Act, which lays out a precise mechanism for
acting on complaints against federal judges.
ii. Complaints are initially heard by the judicial councils. Most result in
either a finding of no misconduct or the imposition of nonpublic
sanctions.
iii. However, if substantial evidence of serious misconduct exists, the judicial
council sends a written report to the Judicial Conference, which may
recommend that the U.S. House of Representatives begin impeachment
procedures.
iv. Impeachment does not mean conviction, but rather allegations of
wrongdoing. The trial on the articles of impeachment is conducted before
the Senate.
v. Conviction requires a two-thirds vote of the senators present and carries
with it removal from office and disqualification from holding any future
office.
Class Discussion/Activity 3
What is judicial independence? How can the interests of judicial independence and
judicial accountability be balanced? Which of those values do you think our system
currently lacking, independence or accountability? Explain.
Class Discussion/Activity 4
What should be done about judicial misconduct? How might culpability be a
consideration in decisions regarding how to respond to incidents of judicial
misconduct?
What If Scenario
What if you are on a judicial conduct commission investigating a judge in your state
accused of arranging to have criminal charges against friends and family dropped?
What information would you seek to determine whether to sanction the judge? What
sanction would you choose if the judge were impeached and found guilty at trial?
See Assignments 3, 4, 5, 6, and 7
V. Judicial Ethics
A. The American Bar Association (ABA) developed a Model Canons of Judicial
Ethics, similar to the codes of legal ethics, but each state has adopted its own
canons of judicial ethics. The purpose of these codes of judicial conduct is to
preserve the integrity of the judicial system and to foster public confidence in
the system (Gray, 2003).
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B. Accusations of improper conduct by judges often reflect a lack of
understanding of the role of judges in the adversary system. Judges face
public criticism for reaching decisions that the public finds unpopular.
C. Prohibition on conduct that brings the judicial office into disrepute is another
requirement of canons of judicial ethics.
D. The tension between electing judges and appearances of impropriety is
emerging as a major issue in judicial ethics.
E. Judges play a key role in enforcing legal ethics.
What If Scenario
Imagine you are a state judge running for reelection and are challenged by a popular
lawyer in town, who is known as a champion for the poor. The latest poll indicated
that you were 5 percentage points behind your opponent. A local labor union with
20,000 due-paying members comes to you to offer not only large donations, but also
actual union member votes, which would assure your victory. You know that the
same union has filed a lawsuit in your court requesting that the current state law
governing the amount of political contributions by labor unions be lifted. Would
you accept their support? If yes, how would you justify your decision ethically?
What If Scenario
Imagine you are a woman who is charged with shooting your boyfriend who
attempted to rape and kill you because he suspected you were cheating on him. The
county in which you committed the crime is extremely conservative. Your case has
been assigned to a female judge, who had gone public with her own story of decades
of physical and emotional abuse by her ex-husband. Would you waive your right to
a jury trial and have your case tried by the judge? State your reasons logically.
KEY TERMS
American Bar Association (ABA): The national lawyers’ association.
chambers: The private office of a judge.
contempt: When a judge finds that a lawyer has gone too far in his or her argument or
was unduly nasty to opposing counsel.
judicial election: Method of judicial selection in which the voters choose judicial
candidates in a partisan or nonpartisan election.
judicial independence: Normative value that stresses a judge should be free from
outside pressure in making a decision.
judicial performance evaluations (JPEs): Questionnaires about judges, completed by
an array of different respondents, designed to provide feedback to judges to improve their
own performance and to provide the public with information about the judge.
Missouri Bar Plan: The name given to a method of judicial selection combining merit
selection and popular control in retention elections.
LECTURE NOTES
Judges play an important within the criminal justice system. They begin with the arrest of
a defendant and move through the sentencing phase. Defendants meet judges at the first
appearance phase. They are able to set and revoke bail if necessary, as well as determine
if there is probable cause to believe a crime has been committed. Judges make decisions
regarding suppression of evidence, preside over trials and sentence offenders according to
the laws of their state. It is imperative to stress that these are a few of the functions a
judge conducts on a routine basis.
Although judges are the most powerful member of the courtroom work group, they are
still constrained by the other members. In many cases, they must wait for the prosecution,
defense, or defendant to make decisions, and often must accept pleas to keep their docket
moving. Commonly, the most stressful part of a judge’s job is knowing his/her docket is
full and the large volume of cases is ceaseless.
Executive appointment, election, and the merit system are the three methods of
supports merit selection. Although most judges are still white, upper middle-class males,
more women and minorities are being appointed to the bench.
Judicial misconduct can be found in many forms, ranging from general misbehavior and
POSSIBLE DISCUSSION POINTS FOR CLASS DISCUSSION QUESTIONS
1. Increases in women and minorities on the bench. Students will differ on their opinion
regarding whether or not the process of increasing diversity needs to move more
2. Judges are appointed by executives (like governors and the president), elected by the
voters, or appointed through a merit selection process. Consider the importance of
judicial independence. Do students have any other ideas about different ways to
appoint judges?
3. Judicial independence is a concept vital to neutral and impartial decision-making.
Essentially it is the idea the judges are not “beholden” to voters or executive branch
4. The different types of responses to judicial misconduct and what students’ think are
the best ways to handle incidents of judicial misconduct. Discuss the difference in
ASSIGNMENTS
1. Ask your friends and family if, when they voted last, they remember if they voted for
any judges in the election. If so, ask if they remember who those judges were, and
2. “What System Does Your State Use?”
3. Utilize the Internet to research judges in your county. Have there been any cases of
misconduct mentioned in the newspaper, on ‘watchdog’ websites, or otherwise
reported online? If so, were these cases you had heard about in the news prior to
doing this research? If not, why do you think that is the case? Discuss your findings
4. Investigate your states’ judicial conduct commission. Identify the processes the
5. “State Judicial Conduct Commissions”
• Texas State Commission on Judicial Conduct website
• Assignment: Have students research the site and report what sanctions have
been implemented in the last year. How many judges were sanctioned? What
were the sanctions for?
LO5
6. “ABA Model Code of Judicial Conduct”
• American Bar Association website
• Assignment: Have students read each of the canons on the site link. Students
should reflect on what each of these canons means in the real world of the
courtroom. Have students take a law in action perspective.
LO5
7. What is the difference between impeachment and removal of a federal judge? Why is
this distinction important? Do some research, find an example of each, and compare